Reg 4(9): Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.

This is usually seen as easier for an employee to show than constructive dismissal, which of course was a remedy available to employees under the pre-2006 regulations if it could be shown that the new employer was failing, or would fail, to keep to an essential term of the contract of employment. Â Within 4(9) however, it is simply enough to show that working conditions would change substantially such as to cause material detriment. This need not involve any contractual breach at all. Naturally there is a great deal of overlap.

InÂ Tapere v South London & Maudsley NHS Trust [2009] UKEAT the employee’s employment was transferred from one NHS Trust to another. The transferee made it clear that following the transfer it would wish her to move from her old offices in Camberwell to the Bethlem Hospital in Beckenham. She wasn’t happy:

[The Claimant] was reluctant to move to work at the Bethlem in Beckenham as she believed that it would increase the journey time. She is a single mother and has to collect her child from school and be available till 8 a.m. when her child would be collected for school by taxi. She gave evidence that if she travelled via her old route of the A13 the journey time to Beckenham would be significantly longer – an additional 10 miles.

The transferee sought to instigate this change under a mobility clause. She resigned and claimed both constructive dismissal, on the basis that the mobility clause did not actually permit the change in location, and reg. 4(9), in that the change was a substantial change in working practices to her material detriment.

The Employment Tribunal found against her on both counts. I shan’t go into the discussion of the mobility clause here, of which there is much, but it is worth a read. Of interest however is the construction of “substantial change” and “material detriment”. The Tribunal had given rather scarce consideration to the terms, but had stated that it had looked at the matter objectively.

‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’, must be applied by considering the issue from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference, constituted ‘detriment’. He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute ‘detriment’, a justified and reasonable sense of grievance about the decision may well do so.

So the correct approach is to consider whether the Claimant holds the view that he has been subjected to a detriment, then consider if he holds that view reasonable. The test is thus subjective, as one looks at the employee in particular. The consequences of this case is that the bar for reg. 4(9) dismissal remains low. I will review the law on mobility clauses in a later post.

This case demonstrates well the ‘purposive’ approach taken in construing regulations designed to implement European law. First, “working conditions” in TUPE does not mean “the conditions under which one works” but is to be interpreted far more widely. Second, the word material in this case does not connote physical materiality, it simply reinforces that the detriment must not be trivial or fanciful, which is of course usually dealt with by the word ‘substantial’.

Finally it should be noted that the successful Appellent was represented by James Medhurst, who blogs about the case himself and has been kind enough to comment on this blog on occasion.

If you have a mobility clause in your terms and conditions limiting your transfer to a location no further than 5 miles from your current office and you are being transferred to a company under TUPE that is 30 miles from your current location and would involve a considerable increase in time and travelling costs, how do you stand if you refuse to transfer and seek redundancy under the â€œsubstantial changeâ€ and â€œmaterial detrimentâ€ definitions.

Does anyone have any advice on this subject? I am subject to TUPE that will mean I will have a 42 mile drive to work into London instead of an 8 mile drive to a local rural office. That means at least 3 hours travelling instead of my current 40 minutes. No time or financial compensation is on offer.

I have recently been transferred to another employer – Capita under the tupe regulations. The options letter states that by choosing a secondment by taking this option you are resisting changes within the organisation. Can this be perceived as a threat. In addition, since this time i have been subjected to a great deal of victimisation in various forms e.g. by being embarrassed in the office with people trying to show my incompetence. In addition, because of the tricky position i am in people are given me too much work which is causing me to fail specific duties i am aiming to succeed in. In addition, i have been called deaf by my immediate line manager. Furthermore, i have noticed that there appears to be a lack of communication within the organisation. Can material detriment be caused when i have conditions which state that i need to have a substantive post to pursue my career. Does the effect of TUPE mean a detriment to myself in the terms whereby my employer is trying to push me to breaking point where i am unable to relax. Furthermore, i have been subjected to various overpayments by the council of which none of them were my fault. I feel like blowing the whistle on the systems and the processes within my organisation. However, i do not want the publicity, i am currently earning a significant wage and my income is suddenly going to drop. Furthermore, i feel i am going to feel detriment in the future as i am being forced from a position whereby i was working with finance and going up through the grades in the council. I am in a position whereby i am currently on secondment and working on projects which will add value to my CV and adding alot of value to the council – the effect of the move will affect my ability to move on in my career and so is the overpayment as i am not able to pay it back in a timely fashion and the baggage of this could also cause the same effect – i feel trapped at the moment and the cumulative effect is affecting my health and ability to concentrate on tasks i need to complete. There also appears to be a great deal of nepotism whereby i am not given alot of information and being kept out of the loop whereby i should have been and having to make decisions without any hand off. I have now got to the stage where i am feeling suicidal and have called the samaritans twice. I feel sick everyday going to work especially knowing that now i am a project manager i am going to be made a call centre agent. I feel this is going to stop my career because i feel trapped.

I must tell you that it’s hard to find your articles in google, i found this one
on 12 spot, you should build some quality backlinks in order to rank your
webiste, i know how to help you, just search in google – k2
seo tips